PROOF OF FACTS: Compelled Domicile is Unconstitutional
EDITORIAL:
This case provides an example of the adverse affects of being victimized by a PRESUMPTIVE domicile which the victim did NOT want to have and how to oppose it in the supreme court of the state. The presumption in this case is STATUTORY and imposed by the Legislature, but it could just as well be imposed against your consent by the whims of a judge based on any number of specific facts or circumstances. It is therefore a good example for use by those who want to be transient foreigners (“non-resident non-persons) EVERYWHERE of how to handle being COMPELLED to have a domicile in a specific place by PRESUMPTION or mere fiat. The victims of the PRESUMPTION are American Nationals who are here called “citizens” in a POLITICAL/CONSTITUTIONAL sense and not CIVIL or domiciled sense.
A PRESUMPTION of domicile against the consent of someone is an act of criminal identity theft and results in tax slavery in violation of the Thirteenth Amendment of those who are the target of the presumption. See:
Government Identity Theft, Form #05.046
https://sedm.org/Forms/05-MemLaw/GovernmentIdentityTheft.pdf
All conclusive presumptions which are not rebuttable are unconstitutional as held by the U.S. Supreme Court:
In its simplest form a presumption is an inference permitted or required by law of the existence of one fact, which is unknown or which cannot be proved, from another fact which has been proved. The fact presumed may be based on a very strong probability, a weak supposition or an arbitrary assumption. The burden on the party seeking to prove the fact may be slight, as in a civil suit, or very heavy – proof beyond a reasonable doubt – as in a criminal prosecution. This points up the fact that statutes creating presumptions cannot be treated as fungible, that is, as interchangeable for all uses and all purposes. The validity of each presumption must be determined in the light of the particular consequences that flow from its use. When matters of trifling moment are involved, presumptions may be more freely accepted, but when consequences of vital importance to litigants and to the administration of justice are at stake, a more careful scrutiny is necessary. [380 U.S. 63, 79]
In judging the constitutionality of legislatively created presumptions this Court has evolved an initial criterion which applies alike to all kinds of presumptions: that before a presumption may be relied on, there must be a rational connection between the facts inferred and the facts which have been proved by competent evidence, that is, the facts proved must be evidence which is relevant, tending to prove (though not necessarily conclusively) the existence of the fact presumed. And courts have undoubtedly shown an inclination to be less strict about the logical strength of presumptive inferences they will permit in civil cases than about those which affect the trial of crimes. The stricter scrutiny in the latter situation follows from the fact that the burden of proof in a civil lawsuit is ordinarily merely a preponderance of the evidence, while in a criminal case where a man’s life, liberty, or property is at stake, the prosecution must prove his guilt beyond a reasonable doubt. See Morrison v. California, 291 U.S. 82, 96 -97. The case of Bailey v. Alabama, 219 U.S. 219 , is a good illustration of this principle. There Bailey was accused of violating an Alabama statute which made it a crime to fail to perform personal services after obtaining money by contracting to perform them, with an intent to defraud the employer. The statute also provided that refusal or failure to perform the services, or to refund money paid for them, without just cause, constituted “prima facie evidence” (i. e., gave rise to a presumption) of the intent to injure or defraud. This Court, after calling attention to prior cases dealing with the requirement of rationality, passed over the test of rationality and held the statute invalid on another ground. Looking beyond the rational-relationship doctrine the Court held that the use of this presumption by Alabama against a man accused of crime would amount to a violation of the Thirteenth Amendment to the Constitution, which forbids “involuntary [380 U.S. 63, 80] servitude, except as a punishment for crime.” In so deciding the Court made it crystal clear that rationality is only the first hurdle which a legislatively created presumption must clear – that a presumption, even if rational, cannot be used to convict a man of crime if the effect of using the presumption is to deprive the accused of a constitutional right. In Bailey the constitutional right was given by the Thirteenth Amendment. In the case before us the accused, in my judgment, has been denied his right to the kind of trial by jury guaranteed by Art. III, 2, and the Sixth Amendment, as well as to due process of law and freedom from self-incrimination guaranteed by the Fifth Amendment. And of course the principle announced in the Bailey case was not limited to rights guaranteed by the Thirteenth Amendment. The Court said in Bailey:
“It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions.” 219 U.S., at 239 .
Thus the Court held that presumptions, while often valid (and some of which, I think, like the presumption of death based on long unexplained absence, may perhaps be even salutary in effect), must not be allowed to stand where they abridge or deny a specific constitutional guarantee. It is one thing to rely on a presumption to justify conditional administration of the estate of a person absent without explanation for seven years, see Cunnius v. Reading School District, 198 U.S. 458 ; compare Scott v. McNeal, 154 U.S. 34 ; it would be quite another to use the presumption of death from seven years’ absence to convict a man of murder. I do not think it can be denied that use of the statutory presumptions in the case before [380 U.S. 63, 81] us at the very least seriously impaired Gainey’s constitutional right to have a jury weigh the facts of his case without any congressional interference through predetermination of what evidence would be sufficient to prove the facts necessary to convict in a particular case.
Just like the case above, COMPELLING domicile violates the Fifth and the Thirteenth Amendment in the context of income taxation, because it is used to STEAL property and enslave those who are stolen from to pay for what is stolen. Even rebuttable presumptions that result in SLAVERY and THEFT if not properly rebutted are just as impermissible.
JUDICIAL and STAUTORY presumptions like the ones mentioned in this case are only one of MANY ways the state COMPELS domicile. Other ways include:
- Refusing to issue state ID to NONRESIDENTS, even if they only have or want one ID.
- Forcing people to surrender all OTHER state ID’s to get one in a specific state.
- Connecting domicile to the issuance of state identification.
- Making domicile a prerequisite to registering to vote or actually voting.
- Refusing to accept nonresident state tax returns filed by those physically RESIDING in the state but who refuse domicile there. This would be equivalent to what is mentioned in this pleading as “choosing who are its citizens”, which the pleading identified as unconstitutional.
The fundamental flaw in this pleading is:
- They falsely equate POLITICAL citizens in the constitution with CIVIL STATUTORY citizens under the tax acts. They aren’t the same.
- They fail to recognize that being a STATUTORY citizen is VOLUNTARY and how one volunteers from a tax perspective. You can, in fact, ELECT to be a “U.S. person” for tax purposes but a NONRESIDENT for every other CIVIL purpose.
Those who don’t volunteer for the CIVIL/DOMICILED Citizen**+D status are “nonresident aliens” and can thus escape the tax mentioned here even if domiciled in the state. This is IN SPITE of the fact that they REMAIN American Nationals and CONSTITUTIONAL/POLITICAL Citizens*. Below is how you do that:
Foreign Tax Status Information Group (FTSIG)
https://ftsig.org
This brief derives from an Amicus Curiae brief filed by the American College of Tax Counsel (“ACTC”), a nonprofit professional association of 700 tax lawyers in private practice, law school teaching positions, and government. It is well-researched and very thoughtfully prepared. The case number is 20200531-SC.
For more on the subject of domicile, see:
Why Domicile and Becoming a “Taxpayer” Require Your Consent, Form #05.002
https://sedm.org/Forms/05-MemLaw/Domicile.pdf
If you want proof that any kind of presumption that impairs a constitutional right is a common law trespass and violation of due process, see:
- Sovereignty Forms and Instructions Online, Form #10.004, Cites by Topic: “Presumption”
https://famguardian.org/TaxFreedom/CitesByTopic/presumption.htm - Presumption: Chief Weapon for Unlawfully Enlarging Federal Jurisdiction, Form #05.017
https://sedm.org/Forms/05-MemLaw/Presumption.pdf
SUMMARY OF THE ARGUMENT
ACTC urges this Court to apply the plain language of Utah Code subsection 59-10-136 to permit individuals to present domicile-related facts to be considered to rebut presumptive domicile pursuant to Utah Code subsection 59-10-136(2). The Tax Commission’s disallowance of individuals’ rights to present these facts and have them considered raises serious questions of federal constitutional law.
The decision below must be judged against restrictions imposed by several provisions of the Constitution of the United States:
- The decision violates the Due Process Clause because Utah is imposing individual income tax on 100% of the income of individuals who have neither resided nor worked in Utah, and thus do not have the required minimum contacts with Utah and/or are connected to Utah only through personal domestic relationships.
- The decision violates the Commerce Clause because if every state applied Utah’s presumptive domicile statute in the same manner as the Tax Commission does, taxpayers would be subjected to tax on 100% of their income in more than one state, thus discriminating against individuals
engaged in interstate commerce. - The decision violates the Privileges and Immunities Clause because under the Tax Commission’s interpretation, Utah requires nonresidents to pay tax on 100% of their income in states where they do not reside and does not require the same of residents.
- The decision violates the Equal Protection Clause because Utah is (1) interfering with individuals’ rights to move from Utah and be treated like residents of other states (who are not taxed on 100% of their income in states where they do not reside) and/or (2) trying to select its citizens rather than allowing the citizens to select Utah.
This Court’s application of the plain language of Utah Code subsection 59-10-136(2) to permit individuals to present domicile-related facts for consideration to rebut presumptive Utah domicile would avoid these constitutional infirmities in the Tax Commission’s decision.
ARGUMENT
Under the plain language of Utah Code subsection 59-10-136(2), taxpayers must have a reasonable means to rebut presumptive Utah domicile by presenting appropriate facts relating to domicile. If the Tax Commission decision is upheld and the taxpayers are provided no reasonable means to rebut presumptive Utah domicile under the statute at issue using domicile-related facts, then several provisions of the U.S. Constitution are implicated, as outlined below. As this Court has held, “we are constrained to construe statutory terms to avoid an unconstitutional application of the statute.” Utah State Rd. Comm’n v. Friberg, 687 P.2d 821, 831 (Utah 1984); see also Nat’l Fed. of Indep. Business v. Sibelius, 567 U.S. 519, 563, 132 S. Ct. 2566, 183 L. Ed. 2d 450 (2012) (quoting Hooper v. California, 155 U.S. 648, 657 (1895)) (internal quotation marks omitted) (“[E]very reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”); and id. at 574 (“[W]e have a duty to construe a statute to save it, if fairly possible.”). The plain language of Utah Code subsection 59-10-136 can, and properly should, be read to allow domicile-related facts to be considered to rebut Utah presumptive domicile in order to avoid an unconstitutional application of the statute.
I. The Tax Commission’s Interpretation Violates the Due Process Clause.
The Tax Commission’s interpretation violates the Due Process rights of affected taxpayers. The Fourteenth Amendment of the U.S. Constitution prevents a State from depriving any person of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Under this Due Process Clause, a state has jurisdiction to impose a tax on a person or entity only if the person or entity has “some definite link, some minimum connection” to the state “such that the tax does not offend ‘traditional notions of fair play and substantial justice.’” North Carolina v. Kaestner, 139 S. Ct. 2213, 2220 (2019) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The individuals in question must also “purposefully avail[]” themselves of the benefits of the forum state before the state can exercise jurisdiction over that person. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). Only “those who derive ‘benefits and protection’ from associating with a State should have obligations to the State in question.” Kaestner, 139 S. Ct. at 2229 (quoting International Shoe, 326 U.S. at 319).
Domicile is not merely a creature of statutory law. Because there are obviously territorial limitations on each state’s taxing and other powers, a state’s attaching the labels of state citizenship, residency, or domicile to a person necessarily has a constitutional dimension. “If the legislature of a State should enact that the citizens or property of another State or country should be taxed in the same manner as the persons and property within its own limits and subject to its authority, or in any other manner whatsoever, such a law would be . . . a nullity . . . .” Miller Bros. Co. v. Maryland, 347 U.S. 340, 342, 74 S. Ct. 535, 98 L. Ed. 744 (1954) (internal quotation marks and citation omitted). Imposing a tax without jurisdiction is “simple confiscation.” Id., quoted in Kaestner, 139 S. Ct. at 2220.1
As applied by the Tax Commission in this case, Utah Code subsection 59-10-136(2) does not allow presumptions to be rebutted using domicile-related facts, thus taxing 100% of the income of citizens of other states who are not domiciled in Utah and do not have “minimum contacts” with Utah.
An example of the constitutional infirmities engendered by that interpretation can be found in the Tax Commission’s recent decision No. 18-978 (August 14, 2020), attached hereto in the Addendum (“Dec. No. 18-978”).2 In this decision, the Tax Commission ruled that an executive who had neither resided nor worked in Utah was nevertheless domiciled in Utah for individual income tax purposes (and thus taxed on 100% of her worldwide income) based solely on the presumption that her spouse was domiciled in the state. In that Dec. No. 18-978, the executive’s spouse moved from Utah to the executive’s state to marry her several years earlier. The husband still owned a home in Utah, but the executive had no ownership interest in the home. As in the instant Buck case, the Tax Commission allowed neither her nor her spouse to present any domicile-related facts to rebut presumptive Utah domicile.
In Dec. No. 18-978, the executive did not have the requisite minimum contacts with Utah and had not purposefully availed herself of the benefits and protections of Utah such that Utah could impose an individual income tax on her income as if she were domiciled in the state. There was no definite link between the executive’s earning income in another state that ties such income to Utah. The executive had neither earned income in Utah, nor resided in Utah, nor owned any property in Utah. Her only connection to Utah was the application of the Tax Commission’s [irrebuttable] presumption that her spouse was a Utah resident despite the statute’s clear provision that such a presumption could be rebutted. The Tax Commission’s unconstitutional application of the statute could be avoided if this Court interprets Utah’s statute to permit the executive and her spouse to present domicile-related facts to rebut Utah’s presumptive domicile.
The Tax Commission’s interpretation also violates Due Process by imposing domicile on individuals based solely on whom they marry, as evidenced again by the executive in Dec. No. 18-978. The executive was presumed to have a Utah domicile based solely on the fact that she was married to a person with presumptive Utah domicile. The United States Supreme Court has “long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause.” Moore v. City of East Cleveland, 431 U.S. 494, 499 (1976) (citations omitted); Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925). Further, the Court has held there is “a private realm of family life which the state cannot enter.” Moore, 431 U.S. at 499 (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).
In Moore, the City of Cleveland, Ohio (“City”), limited occupancy of dwelling units to members of a single family; however, the City’s housing ordinance contained language limiting the definition of “family” to only a few categories of related individuals. Moore, 431 U.S. at 494. Ms. Moore was convicted of a criminal offense because her family living with her then included two grandsons who were first cousins and, therefore, not deemed a “family” under the City’s housing ordinance. Id. at 496. Although the Moore Court acknowledged that the City had legitimate goals which the ordinance was designed to achieve, it ruled that the ordinance violated the Due Process Clause through standardizing children and adults “by forcing all to live in certain narrowly defined family patterns.” Id. at 506.
As interpreted by the Tax Commission, Utah Code subsection 59-10-136(2) would disregard a taxpayer’s “personal choice in matters of marriage and family life”—namely, the choice and intent to marry and remain domiciled in another state. Id. at 499. Under the Tax Commission’s application of the statute, Utah domicile is imputed to individuals (like the executive) even though their only connection with Utah is from their personal domestic relationships. Such an intrusion violates the Due Process Clause by forcing residency and domicile on a nonresident individual merely because his or her spouse has presumptive Utah domicile.
The U.S. Supreme Court has held that personal domestic relationships, by themselves, are not sufficient to warrant a state’s assertion of personal jurisdiction over a nonresident individual. In Kulko v. Superior Court, 436 U.S. 84 (1978), the Court addressed whether a state could assert personal jurisdiction over a nonresident, nondomiciliary parent of a minor child domiciled in the state. The Court ruled that California’s assertion of personal jurisdiction over a New York domiciliary who sent his minor daughter to California to live with her mother was in error. That act was not a commercial act and inferred no intent of the father to receive a corresponding benefit from California that would make California’s assertion of personal jurisdiction over him fair or reasonable. Id. at 101. The Court reasoned that “[t]he unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State …. [I]t is essential in each case that there be some act by which the defendant personally avails [him]self of the privilege of conducting activities within the forum State ….” Id. at 93-94 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
In Kramer v. Kramer, 226 Ill. App. 3d 815 (Ill. App. 4 Dist. 1992), the court ruled that the mere presence of a daughter and an ex-spouse in South Dakota was not enough to establish minimum contacts between a nonresident father and the state. Despite his personal relationships with several individuals domiciled in South Dakota, the defendant father and ex-spouse had neither visited South Dakota during the last 18 years nor purposely availed himself of the benefits and protection of South Dakota. Id. at 819-820.
For a state to assert jurisdiction over a taxpayer, the taxpayer must have minimum contacts with the forum state, such that such jurisdiction would not offend “traditional notions of fair play and substantial justice.” See Kulko, 436 U.S. at 91 (quoting International Shoe, 326 U.S. at 316). In Dec. No. 18-978, the only connection between Utah and the executive is through the executive’s marriage to a former Utah resident. Like the defendants in Kulko and Kramer, this link is too attenuated either to deem the executive to be a Utah domiciliary or to claim she has minimum contacts with Utah sufficient to be taxed as a Utah resident. Although her spouse formerly resided in Utah, the executive’s residence and place of domicile are clearly outside of Utah and always have been. Her only connection with Utah was through her husband’s former Utah domicile, a tie which, without more, is too attenuated to establish minimum contacts with a state.
As narrowly interpreted by the Tax Commission, Utah Code subsection 59-10-136(2) thus interferes with fundamental constitutional protections under the Due Process Clause. To avoid this untenable outcome, this Court should properly require the Tax Commission to interpret the statute to allow individuals to offer domicile-related facts to be considered to rebut presumptive Utah domicile under Utah Code subsection 59-10-136(2).
II. The Tax Commission’s Interpretation Violates the Commerce Clause.
The Tax Commission’s interpretation of Utah law violates the Commerce Clause of the U.S. Constitution by discriminating against out-of-state individuals and imposing a greater burden on non-Utah citizens than on residents of Utah. Article I, section 8 of the U.S. Constitution gives Congress the power to “regulate commerce . . . among the several states.” Pursuant to the Commerce Clause, the U.S. Supreme Court has held that states are prohibited from “discriminat[ing] between transactions on the basis of some interstate element.” Comptroller of the Treasury of Md. v. Wynne, 135 S. Ct. 1787, 1794 (2015) (citation omitted). Moreover, states may not “subject[] interstate commerce to the burden of ‘multiple taxation.’” Id. (citation omitted).
In Wynne, the U.S. Supreme Court “struck down a state tax scheme that might have resulted in the double taxation of income earned out of the State.” Id. at 1795. The Court has described this as the “internal consistency” test, which “‘looks to the structure of the tax at issue to see whether its identical application by every State in the Union would place interstate commerce at a disadvantage as compared with commerce intrastate.’” Id. at 1803 (quoting Oklahoma Tax Comm’n v. Jefferson Lines, 514 U.S. 175, 185, 115 S. Ct. 1131 (1994)).
Here, the taxing scheme imposed under Utah Code subsection 59-10-136(2), as presently applied by the Tax Commission, would result in unconstitutional multiple taxation of income if applied in the same manner by every state. There is a “well established principle of interstate . . . taxation . . . that a [state] may tax all the income of its residents, even income earned outside the taxing jurisdiction.” Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 463, 115 S. Ct. 2214 (1995) (emphasis in original). The domiciliary state has taxing power that is much broader than that of other states. Taxpayers like the Bucks have moved outside Utah and are domiciled outside Utah for all tax and nontax legal purposes (other than the Tax Commission’s current application of the presumptive domicile Utah statute for Utah income tax purposes). The Tax Commission has now taxed 100% of the Bucks’ income (and the income of other taxpayers like them) by not allowing the Bucks to offer evidence to rebut the Utah Code subsection 59-10-136(2) presumptions using domicile-related facts. If every state had such a hard-and-fast presumption (or conclusion, as interpreted by the Tax Commission) based on a property tax exemption or based on the lag before voter registration started in the new state (see Dec. No. 18-978 and Utah Code section 59-10-136(2)), more than one state would be able to tax 100% of the income of both spouses, resulting in clear multiple taxation in violation of the Commerce Clause as most recently outlined by the U.S. Supreme Court in Wynne.
Utah does provide a credit for taxes paid by a resident individual “on income . . . derived from sources within [another] state.” Utah Code section 59-10-1003. However, Utah does not provide a credit for taxes paid because of a taxpayer’s domicile in another state, which captures any income that is not derived from sources within another state. If every state had domicile and credit statutes like Utah’s and also provided to taxpayers no reasonable means to rebut the presumption of domicile based on domicile-related facts, then taxpayers moving from state to state would be subjected to two or more states asserting domicile, and thus two or more states claiming the right to tax 100% of the taxpayer’s income. Such taxpayers are disadvantaged compared to those who do not move. Thus, the Tax Commission’s application of Utah Code subsection 59-10-136(2) violates the Commerce Clause.3
III. The Tax Commission’s Interpretation Violates the Privileges and Immunities Clause.
The Tax Commission’s interpretation of the statute also violates the Privileges and Immunities Clause of the U.S. Constitution, which provides that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. Const. Art. IV § 2. Although the Constitution refers to “citizens,” the Supreme Court has specified that this clause prohibits state discrimination against citizens, residents, and nonresidents equally. Baldwin v. Fish and Game Comm. of Montana, 436 U.S. 371, 383
(1978).
For tax purposes, the Privileges and Immunities Clause generally prohibits a state from imposing a more substantial tax burden on nonresidents than it imposes on its own residents. For example, in Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 80-81 (1920), the Travis Court struck down a provision of the New York income tax statute that prohibited nonresident taxpayers from utilizing a personal exemption that was granted to resident taxpayers. The court reasoned that “[t]his is not a case of occasional or accidental inequality due to circumstances personal to the taxpayer . . . but a general rule, operating to the disadvantage of all nonresidents including those who are citizens of the neighboring states, and favoring all residents including those who are citizens of the taxing state.” Id.
In Austin v. New Hampshire, 420 U.S. 656, 666 (1975), the Court held that a New Hampshire Commuters Income Tax violated the established rule under the Privileges and Immunities Clause of “substantial equality of treatment for citizens of the taxing state and nonresident taxpayer.” The tax was deemed to violate the Privileges and Immunities Clause because it fell exclusively on nonresidents. Id. Further, the court was unpersuaded by the state’s argument that the tax was no more onerous in effect on nonresidents because a nonresident’s total state tax liability was unchanged once the taxpayer received the tax credit from his or her state of residence. Id. The court reasoned that “[t]he constitutionality of one State’s statutes affecting nonresidents cannot depend upon the present configuration of another State’s statutes.” Austin, 420 U.S., at 666.
In Lunding v. New York Tax App. Trib., 522 U.S. 287 (1998), the Lunding Court held that a New York statute denying nonresidents an alimony deduction while affording the deduction to its residents violated the Privileges and Immunities Clause because the discriminatory treatment of nonresidents was not adequately justified.
In the instant case, Utah Code subsection 59-10-136(2), as applied by the Tax Commission, violates the Privileges and Immunities Clause because Utah does not force Utah residents to pay tax on 100% of their income in states where they do not reside, but the Tax Commission is imposing that requirement on nonresidents. Utah residents pay individual income tax to states in which they do not reside only if they earn income from sources from within those states. Under the Commission interpretation, however, nonresidents of Utah, like the Bucks or the executive in Dec. No. 18-978, are not just taxed in Utah on income from Utah sources—they are taxed on their worldwide income. The Tax Commission’s interpretation thus discriminates against nonresidents because nonresidents are forced to pay tax on income in states where they do not reside, whereas Utah residents are not required to do this. The Tax Commission’s interpretation thus violates the Privileges and Immunities Clause. This unconstitutional outcome can be avoided if this Court instructs the Tax Commission to follow the plain language of Utah Code subsection 59-10-136(2) and allow taxpayers the opportunity to rebut presumptive domicile using domicile-related facts.
IV. The Tax Commission’s Interpretation Violates the Equal Protection Clause.
The Tax Commission’s interpretation of Utah Code subsection 59-10-136(2) also violates the Equal Protection Clause and its constituent “right to travel.” The U.S. Supreme Court has held that the “‘constitutional right to travel from one State to another is firmly embedded in our jurisprudence’” and is “a virtually unconditional right, guaranteed by the Constitution to us all.” Saenz v. Roe, 526 U.S. 489, 498 (1999) (holding that a California statute violated the constitutional right to travel by requiring individuals to live in California for one year before being eligible for certain welfare benefits) (quoting United States v. Guest, 383 U.S. 745, 757 (1966)). The Court has described this “right to travel” as including three separate and distinct rights: (1) “the right of a citizen of one State to enter and to leave another State”; (2) “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State”; and (3) “for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Id. at 500 (emphasis added). Stated further, “‘a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.’” Id. at 503 (quoting Slaughter-House Cases, 83 U.S. 36, 80 (1873)). The Court also added that:
A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens.
Id. at 503-504 (quoting Slaughter-House Cases, 83 U.S. 36, 112-113 (1873) (Bradley, J., dissenting)). Lastly:
Citizens of the United States, whether rich or poor, have the right to choose to be citizens ‘of the State wherein they reside.’ U.S. Const., Amdt. 14, § 1. The States, however, do not have any right to select their citizens.
Saenz, 526 U.S. at 510-511.
In Shapiro v. Thompson, 394 U.S. 618, 634 (1969), the U.S. Supreme Court held that “any classification which serves to penalize the exercise of [the right to travel]” violates the Equal Protection Clause “unless shown to be necessary to promote a compelling governmental interest.” The Court in Saenz clarified that a “State’s legitimate interest in saving money provides no justification” to discriminate against fundamental rights. Saenz, 526 U.S. at 507. The Court in Saenz also held that any review of a fundamental right demands a standard of review that is “[n]either mere rationality nor some intermediate standard of review.” Id. at 504. That is, a heightened standard of review is required.
As applied by the Tax Commission, Utah Code subsection 59-10-136(2) raises constitutional implications by impinging an individual’s “right to travel.” The Bucks have a constitutional right to leave the state of Utah and to be treated just like all other residents of Utah and residents of the state to which they move (which residents are not taxed on 100% of their income in states in which they do not reside).
Additionally, individuals like the executive in Dec. No. 18-978 who have never lived in Utah are beyond Utah’s reach. The executive can select Utah to be her state of residence, but Utah cannot make that selection for her because “[s]tates do not have any right to select their citizens.” Saenz, 526 U.S. at 510-511. For these reasons, the Tax Commission’s interpretation of Utah Code subsection 59-10-136(2) unduly infringes on an individual’s right to travel. This result can be avoided by requiring the Tax Commission to consider domicile-related facts to rebut presumptive Utah domicile under Utah Code subsection 59-10-136(2), as was allowed by the Utah Legislature when it passed the plain language of the statute.
CONCLUSION
The Tax Commission’s interpretation of Utah Code subsection 59-10-136(2) raises fundamental concerns regarding violations of the Due Process, Commerce, Privileges and Immunities, and Equal Protection Clauses of the United States Constitution. These infirmities may be avoided by this Court instructing the Tax Commission to apply the plain language of the statute to permit consideration of appropriate domicile-related facts to rebut the statutory presumption of domicile. Accordingly, ACTC respectfully submits that the Court should reverse the decision of the Tax Commission and follow the plain language of the statute by allowing taxpayers to rebut presumptive domicile under Utah Code subsection 59-10-136(2) using domicile related facts.